When the Supreme Court recently ruled that the death penalty for raping a child was unconstitutional, the justices relied on the rationale that it was contrary to the evolving standards of decency by which the court applies capital punishment. That conclusion was based on the courts belief that the federal government and 44 states, including 30 states that otherwise have the death penalty, dont mete out that penalty for child rape cases. Unfortunately, that information was wrong. In 2006, Congress revised the Uniformed Code of Military Justice to include child rape on the list of crimes eligible for the death penalty.

Despite this specific snafu, however, American societal views have recently been moving away from the death penalty in general. This change of heart has been primarily motivated by more than one hundred people on death row being exonerated of the crime they were accused of committing, mostly through DNA evidence. The public is beginning to realize that the government sometimes can and does finger the wrong person, even for serious crimes.

If any evidence of the potential for government malfeasance in capital cases is needed, the federal governments recent agreement to pay $4.6 million in damages to Steven J. Hatfill should suffice. Hatfill was the Army biodefense researcher whose career was ruined by being publicly labeled a person of interest by Attorney General John Ashcroft in the 2001 case of the lethal anthrax letters and who was subjected to leaks to the media by the Justice Department in violation of the Privacy Act. The settlement is governments way of admitting a royal screw-up.

Although no charges have yet been brought for those deadly episodes, the case shows what intense public and media pressure law enforcement authorities experience to get somebody in high-profile capital cases. The DNA exonerations and high-profile government fumbling in cases such as Hatfills have shown the public that the potential is there for wrongful executionsmistakes which cannot be undone if new evidence arises.

Furthermore, minorities are more likely to be given the death penalty than whites for the same crime, and it costs society less to give child rapists and murderers life in prison than it does to pay for all the legal appeals that a civilized society requires on the way to the execution chamber.

Nevertheless, the death penalty may be constitutional. At the time of the nations founding, the death penalty was used, and capital crimes are mentioned in the Fifth Amendment to the Constitution. However, a popular line of argument from the left, used by several Supreme Court justices in the child rape case, is that because capital punishment fails to deter crime, it should be deemed cruel and unusual punishment under the Eighth Amendment. Although many supporters of the death penalty support it for emotional reasons of retribution, even conservative President George W. Bush and many other proponents of capital punishment believe that the only legitimate justification for capital punishment is deterrence.

The problem is that, at the current time, academic experts dont go so far as to say that the death penalty provides no deterrence against violent crime. Writing in the New York Times, Cass R. Sunstein, a professor at Harvard Law School, and Justin Wolfers, an assistant professor at the University of Pennsylvanias Wharton School, merely say that the best evidence shows that murder rates are not closely correlated to the death penalty support it.

However, because the consequences are so severe, for the penalty to be retained, the burden of proof should be on proponents to demonstrate a deterrent effect rather than on opponents to prove that no such effect exists. Nevertheless, the founders didnt seem to think death was a cruel and unusual punishment and it doesnt seem to be so regarded by most people in cases of self-defense. The Eighth Amendment argument seems a little weak.

The implications of a government killing its own citizens for vengeance, deterrence, or any other reasons, however, are far greater than individuals taking lives in self-defense. The government is vastly more powerful than individuals and often has poor incentive structures compared to individual citizens. If the government is allowed to kill criminals, no matter what heinous crimes they have committed, then the precedent can always be expanded to kill law-abiding citizens for political reasons. Governments are especially prone to do this when they are fighting warsreacting to paranoia that the enemy is everywhere.

So although capital punishment may be constitutional, it is still a bad policy idea for many reasons. But the most important reason is the potential for abuse by the government.

Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.